On November 3, 1989, Velasco was convicted of one count of conspiring to possess with the intent to distribute 992.1 grams of a mixture containing cocaine in violation of 21 U.S.C. § 846 and one count of distributing 992.1 grams of a mixture containing cocaine within one thousand feet of an elementary school in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841 (a)(1) and 845a. Three months later, the court sentenced Velasco to a term of 292 months imprisonment to be followed by an eight year term of supervised release. Velasco was sentenced as a career offender under the United States Sentencing Guidelines based on his 1979 New York state felony conviction for criminal sale of a controlled substance and a prior Illinois state felony conviction for possession of cocaine.

Velasco appealed, and the Seventh Circuit reversed this court's sentencing order, holding that the court had improperly relied on Velasco's Illinois conviction in sentencing him as a career offender under § 4B1.1 of the United States Sentencing Guidelines.
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United States v. Velasco, 953 F.2d 1467, 1476 (7th Cir. 1992). The Court of Appeals declined to address Velasco's subsequent argument that this court had also improperly relied on his New York conviction which he claims is constitutionally invalid. In remanding the case for resentencing, the court stated: "Because we remand for resentencing, the district court can resolve the ineffective assistance issue in that proceeding." Id.

At this court's request, a Supplemental PSI was issued on January 26, 1993. Velasco subsequently requested (and the court granted) a stay of his sentencing pending an investigation into the circumstances surrounding a prior state court conviction upon which the government intended to rely to enhance his sentence.
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Following the investigation, in July 1993, Velasco submitted his initial objections to the Supplemental PSI. Velasco objected primarily on the grounds that his prior New York state conviction was constitutionally invalid for ineffective assistance of counsel and that the government had failed to comply with the dictates of 21 U.S.C. § 851(a)(1). Plaintiff requested a hearing on the constitutionality of his prior state court conviction. In its response, the government requested a hearing on its compliance with the notice requirements of § 851(a)(1). The hearing was held on December 16, 1993, and the matter was fully briefed on February 2, 1994.

Defendant challenges the proposed enhancement of his sentence under § 841(b) on the grounds that his 1979 New York state conviction for sale of a controlled substance is constitutionally invalid. (Objections at 3). According to Velasco, his counsel at the time was ineffective, and improperly advised him to plead guilty without first advising him of his rights or adequately explaining the charges against him. (June 20, 1993 Velasco Declaration). As Velasco correctly notes, the court cannot generally rely on constitutionally invalid convictions in imposing an enhanced sentence under either the United States Sentencing Guidelines or federal mandatory minimum sentencing provisions. See United States v. Brown, 899 F.2d 677, 679 (7th Cir. 1990) ("convictions which the defendant shows to be constitutionally invalid may not be counted in the criminal history score"); see also United States v. DeForest, 946 F.2d 523, 525 (7th Cir. 1991) (conviction must be constitutionally obtained for enhancement purposes under mandatory minimum sentencing provision).

This, however, is a somewhat unusual case, in that 21 U.S.C. 851(e) expressly bars individuals convicted under § 841 from challenging the validity of prior convictions that occurred more than five years prior to the filing of the government information seeking enhancement.
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Although neither party cited this provision in their original briefing of this sentencing matter, at the request of the court, both the government and the defendant have submitted supplemental briefs addressing the effect of this provision on defendant's objections to the Supplemental PSI. In the court's view, (and not surprisingly, the government's as well) the effect is obvious, defendant is barred from challenging the validity of his 1979 state court conviction.

Defendant nevertheless posits two reasons why the court should refuse to apply § 851(e). Defendant first argues that the government has somehow waived its right to invoke the § 851(e) bar. Defendant notes that the government has long been aware of defendant's intent to challenge the constitutionality of his 1979 New York state conviction,
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yet not until the court raised the issue sua sponte did the government actually cite the provision itself. According to defendant, the government's failure to raise this issue sooner despite numerous opportunities to do so, precludes it from raising the issue at this late date. (Defendant's Supplemental Brief at 6).

The court disagrees. Unlike other subsections of section 851 (e.g., §§ 851(a) (requiring government to file information), 851(b) (requiring court to ask defendant about prior conviction(s)) which require affirmative action, § 851(e) is phrased in the negative: "No person . . . may challenge. . . ." The government could not have waived any right to invoke § 851(e) for the simple reason that there was nothing to waive. Section 851(e) is self-executing. Moreover, even if it were somehow possible for the government to waive its right to invoke the § 851(e) bar, no waiver has occurred. As the government notes, defendant's resentencing has yet to take place; the matter is still before this court.

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